30. U.S. statement on legal status of UN Committee on Economic, Social and Cultural Rights (Sept. 7, 2007)
Views of the United States of America
2. As the ESC Committee was created by a decision by the United Nation’s Economic and Social Council (“ECOSOC”) rather than being an entity expressly created by the States Parties to the International Covenant on Economic, Social and Cultural Rights (“the ESC Covenant”), it is the view of the United States that if States Parties to the ESC Covenant wished to “rectify . . . the legal status of the [ESC Committee], with the aim of placing the Committee on par with all other treaty monitoring bodies . . . in accordance with international law . . .”, then the States Parties should amend the ESC Covenant or adopt a new optional protocol to the Covenant that would accomplish that objective.
3. The ESC Committee was created by ECOSOC resolution 1985/17. As such, it is the only human rights treaty monitoring body that was not created by its respective human rights treaty. Each of the following human rights treaty bodies was created by its respective human rights treaty:
5. The initial decision to not establish a treaty body under the ESC Covenant was a reflection by negotiators of the different nature of economic, social, and cultural rights. For example, obligations on a State Party “to undertake steps... to the maximum of its available resources, with a view to achieving progressively the full realization of [Covenant] rights....” (Covenant, Art. 2) made it more difficult for an independent body to provide meaningful guidance with respect to treaty implementation. Furthermore, unlike the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol, the ESC Covenant contains no inter-state or individual complaint procedures that require administration and oversight by an independent body. Thus, instead of creating a treaty monitoring body, the drafters opted to utilize, where appropriate, existing institutional structures such as the Economic and Social Council.
6. Notwithstanding the initial decision by the negotiators of the ESC Covenant not to establish a committee in the Covenant, the international community subsequently decided that there would be benefit in creating such a committee. Having been created by an ECOSOC resolution, the ESC Committee as a practical matter monitors implementation of the ESC Covenant in a manner similar to the Human Rights Committee’s monitoring of the ICCPR. For instance, both bodies receive and examine the reports of States Parties, as well as express their concerns and recommendations to States Parties (through “concluding observations”). Both bodies publish their non-binding opinions and legal interpretations of the provisions of their respective Covenants (through “general comments”). The Committees each maintain dialogues with States Parties to the respective Covenants as well as with civil society. Likewise, both Committees are comprised of independent experts that serve in their personal capacities.
7. There are two substantive differences between the competencies of the Human Rights Committee and the ESC Committee, although these differences are of little or no consequence with respect to a proposed “rectification” process. First, the ICCPR’s first Optional Protocol gives the Human Rights Committee competence to examine individual complaints with regard to alleged violations of Covenant rights by States Parties to the Protocol. There is, of course, a separate exercise underway to consider whether the ESC Covenant might have an individual complaint procedure that would expand the ESC Committee’s competencies. Second, Article 41 of the ICCPR provides that the Human Rights Committee may consider inter-state complaints with respect to those States Parties that have made a declaration that they recognize the competence of that Committee to receive and consider such communications. While there is no corresponding provision in the ESC Covenant, so far as the United States is aware, no State Party to any human rights treaty has ever availed themselves of such inter-state complaint procedures under the major UN human rights treaties containing such provisions. Thus, apart from individual complaints, while there is a technical difference in the potential duties of the two treaty bodies, there does not seem to be a meaningful practical difference in their general operations.
8. Accordingly, when considering whether it is necessary or worthwhile to address any differences in the legal status of the ESC Committee, it would be useful for States Parties to the ESC Covenant to identify what practical goals, if any, they seek to achieve. As discussed above, the way to give the ESC Committee a legal status that is identical to other treaty monitoring bodies would be to formally create the entity as a matter of treaty law, either by amending the Covenant or by concluding an optional protocol to the ESC Covenant. However, if this and nothing more is the goal, then there would be a strong argument that it would probably not be worth such labor intensive and costly efforts that such a process would entail. There would be little or no practical consequence of “rectifying” the legal status of the ESC Committee, yet there would be a significant risk of protracted negotiations and even new legal complications and uncertainties. For instance, it will be inevitable that some States Parties will not accede to the amendment or optional protocol in a timely manner (or at all). In the absence of 100 percent adherence of States Parties, it would seem that the ESC Committee would need to be governed concomitantly by ECOSOC resolution and by treaty law, creating overlapping and potentially inconsistent structures and mandates. As discussed above, the terms of an amendment or new protocol are binding only on those countries that have accepted that amendment or protocol.
9. One the other hand, if the goal of States Parties to the ESC Covenant is to create substantial changes in the authorities of the Committee — for example, creating an inter-state complaint procedure — then the rationale for adoption of such a provision by treaty would be strengthened. But even this particular change would not seem to justify amending the ESC Covenant. The Draft Optional Protocol to the ESC Covenant, which is currently under negotiation, proposes an inter-state complaint procedure that would include new ESC Committee competencies. Thus, for both the individual and inter-state complaint procedures, there is already a separate exercise underway that could establish new Committee competencies as a matter of international treaty law through an optional protocol to the ESC Covenant.
10. In summary, it is the view of the United States that, if States Parties to the ESC Covenant wish to “rectify...the legal status of the Committee” and place it “on par with all other treaty monitoring bodies . . . in accordance with international law . . .”, then the States Parties would need to amend the ESC Covenant or adopt a new optional protocol to the Covenant that would accomplish that objective. However, before pursing such a course, States Parties to the ESC Covenant might be well advised to identify and consider whether there are any real, practical problems in the operation of the Committee other than this technical legal difference related to the creation of the Committee. If changing the legal basis for the Committee accomplishes no important practical consequence, such a change is unlikely to be worth the cost borne and effort required by the international community.
 Indeed, Article 1 of the draft Optional Protocol would “recognize the competence of the Committee to receive and consider communications and to conduct inquiries as provided for by the provisions of the present Protocol.” Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Fourth session, Geneva, 16-27 July 2007. Doc. No. A/HRC/6/WG.4/2 (Apr. 23, 2007) (Hereinafter “Draft Optional Protocol”).
 Draft Optional Protocol, Article 9, supra note 1.
 The Draft Optional Protocol, supra note 1, would also create additional ESC Committee competencies, not discussed here, under international treaty law.